K. S. Okeaya Vs Madam Ekiomado Aguebor (1970)

LawGlobal-Hub Lead Judgment Report

UDOMA, J.S.C. 

This appeal is against the judgement of the High Court of the Mid-Western State, Benin Judicial Division. It has been brought by K. S. Okeaya-Inneh (hereinafter to be referred to in this judgement as the appellant). The appellant has complained against the judgement and has urged this Court to have it set aside on five grounds, which are as follows:

(1) The learned trial judge erred in law and on the facts in failing to observe that the plaintiff has failed to discharge the onus of proving that the land in dispute was the land alleged to have been sold to her by Jarin Robinson.
The learned trial judge erred in law and on the facts in finding that in 1961 Jarin Robinson gave the plot in dispute to the plaintiff in compensation for the loss of the plot originally sold to her as per exhibit A when
(a) there was absolutely no evidence to that effect;
(b) the plaintiff made no such claim either in her statement of claim or in her evidence.
“(3) The learned trial judge erred in law in failing to dismiss the plaintiff’s claim when neither her pleadings nor her evidence and that of her witnesses set out precisely the nature of the title she claims or the native law and custom relating thereto.
(4) The learned trial judge erred in law in failing to observe that exhibit A, being an estate contract, was inadmissible in evidence by virtue of section 16 of the Land Instruments Registration Law.

(5) Judgement is against the weight of evidence.”
The suit which gave rise to this appeal was instituted by Madam Ekiomado Aguebor (hereinafter to be referred to in this judgement as the  respondent) against the appellant. The claims of the respondent before the High Court were for:
(1) A declaration of title to a piece or parcel of land;
(2) #100 damages for trespass; and
(3) A perpetual injunction.
For the purpose of this appeal we consider that paragraphs 1, 3, 4, 5, 8 and 9 of the respondent’s statement of claim contain the crux of her case for the proper appreciation of which the averments therein made are set out hereunder:
“(1) The plaintiff is a housewife and petty trader whose address is at 14, Old Siluko Road in the city of Benin and has at all times material to this action been resident in Benin within the jurisdiction of this honourable court.

(3) The plaintiff has at all times material to this action been owner in possession of a piece or parcel of land lying situate and being at Ward 23L Benin City the particulars of which are given as measuring approximately 92 feet by 100 feet and known as Block P.B.T.B.B. 102-2070 which with its dimensions and abuttal’s are more particularly described and delineated in pink on plan No. OM.2355 attached to this statement of claim and filed with the same in this action. The plaintiff shall rely on the said plan.

(4) The plaintiff at all times material to this action has evinced positive acts of ownership and possession of the said piece or parcel of land to wit:
(a) The plaintiff customarily obtained title to the said piece or parcel of land by applying to the Plot Allotment Committee of Ward 23L on or about 1961, which application was approved by the Oba of Benin on or about 1962. The plaintiff shall rely on the said approved application.
(b) The plaintiff on or about 1964 took steps to prepare a building plan in respect of the said piece or parcel of land hereinbefore mentioned in paragraph (3) hereof and the said building plan would be relied upon during the trial of this action.
(c) Before the plaintiff took steps in 1964 as aforesaid to prepare a building plan in respect of the said piece or parcel of land she had, on the approval of her application to own and possess the said piece or parcel of land, planted economic trees to wit:
(i) 25 orange trees
(ii) 10 pear trees, on the said piece or parcel of land.

(d) Over and above the said economic trees planted by the plaintiff as enumerated in paragraph 4 (c) above, the plaintiff planted cash crops to wit: Cassava from year to year on the said land after approval in 1962 as aforesaid.
(e) The plaintiff during the period of time in which she asserted her rights over the said piece or parcel of land did these acts herein-mentioned nee vi, nee clam, nee pereario and the defendant at no time whatsoever disputed the plaintiff’s acts enumerated herein.

(j) The plaintiff was never disturbed by anyone whatsoever during the said period in her enjoyment of possession of the said piece or parcel of land.    .(5) In 1966 the defendant suddenly by himself his servants/agents went forcibly onto the land and uprooted the economic trees and cassava plants herein before enumerated, removed the beacons which the plaintiff caused the Plot Allotment Committee to plan thereon in order to demar-cate the plaintiff’s land. The beacons so removed by the defendant are on the north-west of the plan relied upon in this action.    .
(8) The defendant’s solicitors admitted by their letter dated the 24th day of September, 1966 that the plaintiff was customarily granted the said piece or parcel of land by His Highness the Oba of Benin, but that the said grant to her had been revoked and said inter alia as follows:
“Perhaps it may be useful if you would kindly bring to your client’s notice that what she erroneously believed was a grant of land to her has by necessary implication, and in accordance with custom been revoked by the grantor and so she cannot now be admitted to assert any right to the said plot of land.”
(9) The plaintiff shall rely on the said letter of 24th September, 1966 and shall aver that the defendant is aware of the title of the plaintiff to the said piece or parcel of land and shall further insist during the trial that the defence of the defendant shall be restricted to showing that the plaintiff’s title to the said piece or parcel of land had in fact been revoked by the grantor in accordance with Native Law and Custom.”.
The appellant’s defence to these averments is to be found in paragraph 4, 5, 6, 8, 9 and 13 of the statement of defence the particulars of which are in the following terms:
“(4) The defendant denies paragraphs 3, 4, 5, 7, 8 and 10 of the statement of claim, and will at the trial put the plaintiff to the strictest proof of the allegations therein contained.
(5) In answer to paragraph 3 of the statement of claim the defendant contends that the land in dispute has long before 1961 been a part of a larger area of land which is the property in possession of one Madam Robinson who in 1964 transferred the same to Mr. F. Akenzua of the Ministry of Justice, Benin City by a deed of conveyance dated 29th day of June 1964. In July, 1966, the said Mr. F. Akenzua by a deed of conveyance transferred the land in dispute to the defendant. Both deeds of conveyance which will be founded upon at the trial of this action were registered as No. 42 at page 42, Volume 18, and No. 13 at page 13 Volume 43 of the Lands Registry Office at Benin City respectively.

(6) In specific answer to paragraph 4(c) (d) (e) (f) of the statement of claim the defendant will contend at the trial of this action that the plaintiff has never been in possession of the said land in dispute as alleged. And that the purported claims under paragraph 4(c) (d) (e) if) of the statement of claim namely: the destruction of cash-crops and orange trees are untrue and an afterthought. The plaintiff’s solicitor’s letter of 21st September, 1966 where for the first time the plaintiff laid claim to the land in dispute will be founded upon at the trial.

(8) In answer to paragraphs 5, 6 and 7 of the statement of claim the defendant avers that the land in dispute is his property in possession since July, 1966 when he purchased it in good faith from the said Mr. F. Akenzua for value, and without notice of any incumbrances.
(9) In further answer to paragraphs 5 and 6 of the statement of claim the defendant avers that the building by him on the said land was in exercise of his right of ownership thereof; and will put the plaintiff to the strictest proof at the trial of this action.
(13) In the further answer to paragraphs 3, 4 and 5 of the statement of claim the defendant will strongly contend at the trial that the plaintiff had no right of possession or ever been in possession of the land in dis:-pute. And will ask that his claim be dismissed with substantial costs.
On the pleadings set out above issues were joined; and it fell upon the respondent to prove by preponderance of evidence that she had acquired title to the piece or parcel of land lying, situate and being at Ward 23L Benin City measuring approximately 92 ft. by 100 ft. and known as Block P.B.T.B.B. 102-2070 (hereinafter to be referred to as the land in dispute), in accordance with Bini Customary Law.

In support of her case the respondent at the trial gave evidence herself; called among others, an expert witness as to the procedure and practice sanctioned by customary law for the acquisition of land in Benin Division, and a member of the Plot Allotment Committee for Ward 23L Benin City.

As the learned trial judge in his judgement appeared to have accord, not without justification, having regard to the pleadings and the whole basis of the respondent’s case, and indeed of the case for the appellant, considerable prominence to the expert evidence concerning the mode of acquiring land under Bini Customary Law, it is necessary that the respondent’s testimony be tested in the light of the evidence given by her witnesses notably, Hawdon Omoregbe Uwaifo (P.W.1), the expert on the customary method of acquiring land in Benin Division and Elijah Uwoghiren Irabor (P.W.4), Secretary to Ward 23L Plot Allotment Committee in order to detennine the extent to which she had herself complied with custom in her purported acquisition of the land in dispute. Be it noted that the evidence given by these two witnesses was accepted by the learned trial judge.

Then there is the question about the identity of the land, which is, whether or not the land in dispute was the land purportedly acquired by the respondent as testified to by her, having regard to the evidence of Silverius Okpogie (P.W.5)-the owner of an adjoining plot of land.

The respondent’s case, as far as is relevant for the purpose of this appeal, was that in 1958 she bought a rubber plantation situate in Ward 23L at Uselu in Benin City (the land in dispute) from Madam Jarin Robinson (D.W.1) and obtained a document, exhibit A as evidence of the transaction. In or about 1961, she was taken by Madam Jarin Robinson (D. W.1) before the Plot Allotment Committee of Ward 23L where she applied in writing, exhibit B, to the Oba of Benin through the said committee for a grant of the land in dispute to her under Bini Customary Law. Before the committee, Madam Jarin Robinson (D.W.1) had confirmed that she had sold the land in dispute to her. As a result, the committee according to custom detailed some of their members to inspect the land, which they did in the presence of Madam Jarin Robinson (D.W.1) who at the site pointed out to the members of the Allotment Committee the precise area which she had sold to her. The land was then lying between a plot of land already sold to Silverius Okpogie (P.W.5) and a piece of land, property of the Oba of Benin. Her application, exhibit B was put in after the inspection and after the Plot Allotment Committee had expressed satisfaction and agreement to recom:-mend it to the Oba of Benin for approval, which approval, she subsequently and duly received in 1962.

It was on the strength of the Oba’s approval that she immediately entered into possession of the land in dispute and therein exercised her lawful right as owner in possession by cultivating thereon economic trees and crops and  uprooting therefrom the rubber trees planted therein previously by Madam Jarin Robinson (D.W.1).

She was disturbed in the exercise of her right of ownership in and over the land only in July 1966 when the appellant with:-out her leave, licence or consent broke and entered the said land and proceeded to erect a building thereon and completely ignored her repeated request to desist from such unwarranted acts of trespass.
Under cross-examination the respondent was emphatic that she first inspected the land in dispute in the company of Madam Jarin Robinson (D.W.1) when she first bought it and later together with the members, including the chairman and the secretary of Ward 23L Plot Allotment Committee again in the company of Madam Jarin Robinson (D.W1).

On the other hand in his evidence Elijah Uwoghiren Irabor (P.W.4), the secretary of Ward 23L Plot Allotment Committee, denied that he or any member of his committee ever went to inspect the land in dispute at the time in 1961 when the respondent applied through the committee to the Oba of Benin for the grant of land she had acquired from Madam Jarin Robinson (D.W.1).

He also denied that Madam Jarin Robinson (D.W.1) ever went with any member of the committee to the land purported to have been sold at the time to the respondent when the latter submitted to their committee her application, exhibit B together with exhibit A which was attached thereto.

The evidence of Elijah Uwoghiren Irabor (P.W.4) was to the effect that at the time when the respondent applied for the grant to her of the land in dispute, the members of the committee had considered it unnecessary to inspect the said land since they knew the land and had inspected the area in connection with a previous dispute between Madam Jarin Robinson (D.W.1) and Silverius Okpogie (P.W.5), and that Madam Jarin Robinson (D.W.1) never attended the meeting of the committee at which the respon-dent’s application, exhibit B, was submitted and considered.

Then there was Silverius Okpogie (P.W.5) who swore in effect that the land in dispute was not the land which Madam Jarin Robinson (D.W.1) sold to the respondent in 1958 and for which exhibit A was executed. Indeed his testimony, which was accepted by the learned trial judge, was that as the respondent “was unable to have the land covered by exhibit A and originally sold to her” by Madam Jarin Robinson (D.W.1) in 1958 the land now in dispute was sometime in 1961 allotted to her by Madam Jarin Robinson (D.W.1) as compensation and in substitution for the original piece or parcel of land which the respondent had lost.

It is also not without significance that the respondent did not call Madam Jarin Robinson (D.W.1) as a witness. Indeed Madam Jarin Robinson (D.W.1) was ostensibly the principal witness for the appellant and testified to the effect that the land which she sold to the respondent was different from the land in dispute. Somehow, the learned trial judge treated her evidence and, we think rightly, with suspicion. In any event as observed by the Court, her evidence in that respect did not particularly advance the cause of the appellant in so far as acquisition of title in and over the land in dispute under Bini Customary Law is concerned.

By far, the most important witness in this case would appear to be Hawdon Omorogbe Uwaifo (P.W.1), described in the proceedings as the President of the Udo Customary Court, Benin Division. He was called by the respondent as an expert on the mode of acquiring land under Bini Customary Law.

On the general and important issue as to the mode of acquiring a grant of land under Bini Customary Law, the learned trial judge, after a careful con-sideration, accepted the evidence given by Hawdon Omorogbe Uwaifo (P. W.1) which was corroborated by the contents of a booklet, exhibit K, entitled “Benin Custom and Law regarding Land, Burial Rites and Inheritance” written by Hawdon Omorogbe Uwaifo himself, and found as a fact that it was common ground that among other things:
(a) all lands in Benin Division are vested in the Oba of Benin who is thus trustee or legal owner thereof on behalf of the people of Benin who are beneficiaries in respect thereof;

(b) in respect of Benin City itself, the Oba of Benin had by 1961 appointed ward allotment committees in respect of 12 wards into which the City had been divided shortly before this for the purpose of plot allocation;

(c) whereas any grantee of land in Benin City before 1961 might not be able to produce the approval in respect thereof reduced by the Oba of Benin into writing, such a grantee after this period must be able to pro:-duce such evidence;

(d) one of the several functions of a ward plot allotment committee is to recommend plot applications to the Oba of Benin for approval;

(e) an applicant for land in Benin City as from 1961 has to direct his application in writing to the ward plot allotment committee of his choice;

(f) the ward plot allotment committee upon receipt of the application would delegate some of their members to carry out an inspection of the land acquired within the area of their ward and they in turn would report back to the committee on their inspection        “the purpose of the inspection” being “to ascertain the plot to be granted with certainty and also to ascertain if it is free from dispute or has not been previously granted to someone; ”

(g) upon being satisfied about the exact locations, the dimensions and the fact that the desired plot is “dispute free”, the ward plot allotment committee would endorse the application with the above facts and for-ward it to the Oba of Benin as recommended;

(h) the Oba of Benin would, as a rule, accord his approval in writing to a recommended application and an applicant whose application is approved by the Oba of Benin becomes the beneficial owner of the land as approved for him;
(i) an approval once given remains valid until set aside by the Oba of Benin when evidence is subsequently produced of a prior approval for the same land, the second approval being bona fide and in ignorance of the existence of an earlier one;
(j) it is contrary to Benin custom to set aside an approval made in error upon an ex parte application by one of the affected parties. In other words, to set aside an approval made in error the two parties affected by the conflicting grants must be present before the Oba at the same time and his decision must be communicated to them after an open hearing at the Oba’s palace. Such decision must also be communicated to the ward allotment committee from which the two conflicting recommendations had emanated.

These findings as to the requirements of custom have not been challenged at all. On the contrary it is the contention of learned counsel for the appellant that on those findings, the respondent’s claim ought to have been dismissed as she had failed to discharge the onus upon her that she had complied with the requirements of Bini Customary Law at the time of the purported acquisition of the land in dispute or that the land in dispute was the land which she acquired in 1958 from Madam Jarin Robinson (D.W.1).

That brings us to consider the submissions of learned counsel for the appellant on the 1st, 2nd and 5th grounds of appeal which were the only grounds of appeal argued before us. They were argued together.

It was contended by learned counsel in respect of the 1st, 2nd and 5th grounds of appeal that the land in dispute was not the land which the respondent had sworn she had bought from Madam Jarin Robinson (D.W.1) in 1958 and for which exhibit A was executed; that it was not part of the respondent’s case either on the pleadings or on her own testimony that in 1961 the land in dispute was given to her as compensation or in exchange for the loss of the land originally sold to her and covered by exhibit A; and that, having found that the plot in dispute was given to the respondent in 1961 by Madam J arin Robinson (D. W.1) as compensation for the loss of the original piece or parcel of land in respect of which exhibit A was executed, the learned trial judge ought to have held that the respondent had failed to discharge the onus which was upon her of establishing that the land in dis-pute was in fact the land which she had bought in 1958 from Madam Jarin Robinson (D.W.1). That being so, it was submitted, her claims ought to have been dismissed.

We think these submissions are unassailable. They are weighty and carried with them considerable force. Indeed learned counsel for the respondent readily appreciated the impact of these submissions and rightly, we think, conceded the weaknesses in the respondent’s case. He applied that either the respondent be non-suited or the case be sent back to the court below for rehearing.

We have given anxious thought to the application to non-suit the respondent or to order a new trial. There is nothing in the record of proceedings and the whole of the evidence in this case which would justify this Court in granting either of the applications. The evidence marshalled in support of her case was inconsistent and contradictory.

She even failed to follow the prescribed customary procedure in her attempt to acquire the land in dispute. Her application, exhibit B, upon which she placed much reliance is not of any assistance to her for the purpose of acquiring land under Bini Customary Law. Exhibit B on the face of it is an application for an approval to erect a building upon a piece of land already acquired. It is not one seeking the Oba’s approval for the acquisition of land.

The document which was addressed to His Highness Akenzua II, The Oba of Benin, reads as follows:

“Sir,
Application for Approval of Plot
I have the honour most humbly to apply to you for an approval to erect a residential building on my plot measuring 92ft. x 100ft. situated opposite No.3, Cemetery, between Mr. S. O. Okpogie and His Highness, the Oba of Benin, Block P.B.T.B.B., 102-2070.

The rubber trees with the plot thereupon have been legitimately transferred to me by Madam Jarin Robinson vide agreement dated 16-4-58.
The plot has been inspected by the committee members with the vendor who reported that it is free from any nature of dispute.
I shall be grateful for your early approval.
I have the honour to be, Sir, Your Obedient Servant (Maid) (Thumb Impression of Ekiomado Aguebor) Applicant”

On the face of the application exhibit B, there could not have been any grant of land by the Oba of Benin to the respondent, nor would any approval by the Oba be regarded as related to any such grant. The learned trial judge did not, with respect, properly direct his mind to the evidence when he held that “the grant contained in exhibit B still subsists and had neither been withdrawn nor cancelled as prescribed by the Bini custom”.

Furthermore there is no basis for the finding by the Court that since the object of inspection was to ascertain the location of the plot with certainty “failure to go on an inspection would not invalidate the customary grant”. Such a finding is contrary to the evidence which was given by Hawdon Omoregbe Uwaifo (P.WA) and accepted by the learned trial judge. On this point this was what Hawdon Omoregbe Uwaifo (P.WA) said:

“The purpose of the inspection is to ascertain the location of the plot, to ascertain how large it is and to ascertain its boundaries. The delegates would also report back on whether the plot is “dispute free” in other words, whether it is vacant or being claimed by some other persons.
On being satisfied that the plot is “dispute free”, the committee would recommend the applicant’s application to the Oba of Benin.The inspection of the land by the delegates of the relevant plot allotment committee is an indispensable step towards the grant of land under Bini customary law within Benin City where the land is carved out into wards.”

We are satisfied that on the evidence and on the findings by the learned trial judge it was not proved that there was any grant of land made to the respondent by the Oba of Benin in accordance with Bini Customary Law. The fact that the land was never inspected by the ward allotment committee was a serious omission on the part of the committee. It may be that if the committee had inspected the land, the present dispute might have been averted.

This appeal is allowed. The declaration of title, an award of 25pounds damages for trespass and the injunction granted to the respondent in respect of the land in dispute are set aside. Her claim is dismissed, and this shall be the order of the Court. The appellant’s costs in this Court are assessed and fixed at 90 guineas and in the Court below at 70 guineas.

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Other Citation: (1970) LCN/1838(SC)